On May 1, 2020, the U.S. Department of Health and Human Services issued a new regulation, 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program. Under this new regulation, any request for electronic health records, whether coming directly from the patient themself, or from a designated representative on behalf of the patient, e.g., their attorney, are subject to the “patient rates” which are specified in the Health Information Technology for Economic and Clinical Health (HITECH) Act that was enacted in 2009.
As a result of this May 2020 regulation, attempts by healthcare providers or their third-party vendors to charge inflated fees for electronic medical record requests are now classified as “information blocking” under the 21st Century Cures Act. Additionally, the regulation clarifies and expands the “patient rate” to any “person or entity designated by the individual”, not just the individual’s “agent” or “personal representative”.
Although the 21st Century Cures Act went into effect on June 30, 2020, the Department of Health and Human Services announced this Act will not be enforced until February 2021, due to the COVID-19 pandemic. However, while healthcare providers and their third-party vendors will not be fined until after February, they must still be in compliance with this May 2020 regulation now.
Significantly, attorneys who obtain medical records for their clients are permitted to challenge higher fees that do not act in accordance with the 21st Century Cures Act.
We point out that the federal court decision made in Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020) — which essentially barred the Department of Health and Human Services (HHS) from expanding the “patient rates” to a patient’s attorney or some other representatives under the HITECH Act — does not affect the rules put into place more recently by the 21st Century Cures Act promulgated by HHS in May 2020.